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The Problem of Unjust Laws, 26 Cath Notre Dame Law School NDLScholarship Journal Articles Publications 1981 The rP oblem of Unjust Laws Charles E. Rice Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Legal History Commons Recommended Citation Charles E. Rice, The Problem of Unjust Laws, 26 Cath. Law. 278 (1980-1981). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/75 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE PROBLEM OF UNJUST LAWS CHARLES E. RICE* John Finnis has contributed most significantly to our understanding of how "practical reasonableness"' has affected creation and evaluation of human law. The main objective of a theory of natural law is to show how sound laws are to be derived from principles based on reason. It is true, as Finnis points out, that "the affirmation that 'unjust laws are not law' 2 * . is [generally] a subordinate theorem" of natural law theory. Never- theless, the experience of the past half century requires that we examine seriously, as Finnis has, the moral obligation of the unjust law. The Nazi crimes before and during World War II contributed to a postwar revival of natural law thinking, reflecting the phenomenon that the natural law, though often considered moribund, enjoys renewed ad- herence in times of crisis. This revival prevailed in the German courts as well as in other countries for a few years after World War II. Today, fol- lowing another period of obscurity, natural law thinking is on the rise again. In America, the "just war" theories espoused by the opponents to the Vietnam War contributed to this development. Another catalyst ap- pears to be the legalization of abortion. The legal prerequisite to abortion, apparently, is the simple declaration that the fetus is a nonperson, rea- soning strikingly similar to that employed by the Nazi positivists. If a nation's constitution regards innocent human beings as nonpersons, and, therefore, potentially subject to destruction at the discretion of others, the ultimate appeal against that depersonalization must be to a law higher than that constitution. In this context, jurisprudence has correctly been termed an exercise in "Ultimatology. '' 3 In every legal system, there must be an ultimate criterion for the legitimacy of law. Thus, in a real sense a god must exist in every legal system. The god will take the form * Professor of Law, University of Notre Dame, School of Law; A.B., College of the Holy Cross, 1953; LL.B., Boston College, 1956; LL.M., New York University, 1959; J.S.D., New York University, 1962. J. FINNIS, NATURAL LAW AND NATURAL RIGHTS 3 (1980) [hereinafter cited as FINNIs]. Id. at 351. Barret, A Lawyer Looks at Natural Law Jurisprudence,23 AM. J. OF JURIS. 1, 9 (1978). UNJUST LAWS of a spiritual entity or the state. If the state does not recognize a standard of right and wrong higher than itself, higher than the will of the people, and higher than any other human standard, then the state itself will be- come, in a sense, the ultimate god. In this century, we have suffered from a lack of serious expositions of the reasoned foundations and workings of the natural law. Finnis' Natu- ral Law and Natural Rights will help to remedy that problem. A useful part of Finnis' analysis is his response to the question, "[h]ow does injus- tice . affect the obligation to obey the law.' Finnis correctly empha- sizes that a law's injustice does not necessarily deprive that law of all legal validity even though its injustice may deprive it of moral obligation. The injustice of a law may be argued to deprive that law of obligatory power in the "intrasystemic sense," in which, for example, the Constitu- tion itself may incorporate standards of justice. More specific examples are the concepts of due process of law and equal protection under the law embodied in the fourteenth amendment.5 If the question as to the obliga- tion of a law involves no higher inquiry than whether the law is constitu- tional, then a decision on this issue by the highest court will authorita- tively settle the matter. Therefore, "it is idle to go on asking the question in this sense . after the highest court has ruled that in its judgment the disputed law is not unjust or, if unjust, is none the less law, legally obligatory, and judicially enforceable."'6 Thus, President John F. Kennedy opposed the efforts of those who sought to reverse the Supreme Court decisions outlawing prayer in public schools, decisions claimed by some to be unjust. The President stated: "I think it is important for us, if we are going to maintain our constitutional principles, that we support the Su- preme Court decisions, even though we may not agree with them. '" Simi- larly, the United States Commission on Civil Rights prefaced its report on abortion with this disclaimer: The Commission therefore takes no position on the moral or theological de- bate which surrounds the issue of abortion. .. The commission's sole posi- tion is its affirmation and support of each woman's "constitutional right" as delineated by the Supreme Court.8 This limited view of the question of legal obligation is constitutional positivism. The Supreme Court has interpreted the fourteenth amend- ment and other constitutional provisions to embody various natural rights and principles of fairness. These rights, however, are protected only be-. 4 FINNIS, supra note 1, at 354. " See id. at 354-57. 6 Id. at 357. U.S. COMMISSION ON CIVIL RIGHTS, CONSTITUTIONAL ASPECTS OF THE RIGHT TO LIMITED CHILDBEARING 79 (1975). 8 Id. at 1. 26 CATHOLIC LAWYER, AUTUMN 1981 cause the Court chose to find them in the Constitution. Their protection is not based on the fact that they are above the Constitution and are binding whether or not they are found in the Constitution. Rather, such natural rights are protected only if they are found at least implicitly in the Constitution. If the Constitution is interpreted by the Supreme Court to exclude one of those rights, there is no further appeal. An uncritical reading of Supreme Court opinions on issues of due process in criminal procedure and other matters might lead one to think that the Court rec- ognizes a higher natural law. The natural law, however, is applied only to the extent that it is determined to exist in the Constitution itself. George Mason might well be ridiculed if today he asserted the argument he first posited in the 1772 case of Robin v. Hardaway:9 "[n]ow all acts of legisla- tion apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth."1O Another manner in which Finnis examines the question whether the injustice of a law affects the obligation to obey it arises when a nation's highest court has ruled that an allegedly unjust law is not unjust or, if unjust, that it is still binding law. The question in its third sense therefore arises in clear-cut form when one is confident that the legal institutions of one's community will not accept that the law in question is affected by the injustice one discerns in it. The ques- tion can be stated thus: Given that legal obligation presumptively entails a moral obligation, and that the legal system is by and large just, does a par- ticular unjust law impose upon me any moral obligation to conform to it?" The Finnis analysis is particularly strong on this point. He convinc- ingly rejects the argument by the "positivists," that the question belongs, not in jurisprudence but in some other discipline such as political philoso- phy or ethics. 2 On the contrary, Finnis states, "the principles of practical reasonableness and their requirements from one unit of inquiry which can be subdivided into 'moral,' 'political,' and 'jurisprudential' only for a ped- agogical or expository convenience which risks falsifying the understand- ing of all three."'" The positivist, however, will respond If people could choose which laws they will regard as moral and therefore obey, the sys- tem will fall apart. It will be a legal Disneyland of eclecticism. This is one of the strongest practical arguments made against the doctrine of natural law and Finnis responds to it convincingly. He begins his response by 1 Jefferson's Va. Rep. 109 (1772). o Id. at 114. " FINNIS, supra note 1, at 357 (emphasis in original). " Id. at 357. Id. at 359. UNJUST LAWS noting that "the stipulations of those in authority have presumptive obligatory force (in the eyes of the reasonable person thinking unrestrict- edly about what to do) only because of what is needed if the common good is to be secured and realized.""' There is no license to exalt at will one's own judgment above that of authority. Nevertheless, Finnis clearly states: Therefore, if the ruler uses his authority to make stipulations against the common good, or against any of the basic principles of practical reasonable- ness, those stipulations altogether lack the authority they would otherwise have by virtue of being his. More precisely, stipulations made for partisan advantage, or (without emergency justification) in excess of legally defined authority, or imposing inequitable burdens on their subjects, or directing the doing of things that should never be done, simply fail, of themselves, to create any moral obligation whatever." An otherwise just law enacted for the common good, however, is not "de- prived of its moral authority by the fact that the act of enacting it was rendered unjust by the partisan motives of its author."' Furthermore, Finnis applies a principle of "standing to sue" when he concludes that "the distributive injustice of a law [does not exempt] from its moral obli- ' 7 gation those who are not unjustly burdened by it.' The above criteria enunciated by Finnis operate to qualify the princi- ple that "an unjust law is no law," thus preventing the natural law from creating the means by which public authority and the common good might be undermined.
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